A Charter of Human Rights – What will this mean for a Fairer Future?

04/08/2006

by Dr Helen Szoke
Chief Conciliator/Chief Executive Officer
Equal Opportunity Commission Victoria

I would like to commence today by acknowledging the traditional owners of the land and to pay respect to their elders and to acknowledge their sacred connection to the land.

When the Attorney General called together the community stakeholders to Parliament House in May to announce that the Charter of Human Rights and Responsibilities had been introduced into the Parliament, he cited the importance of human rights to everyone from Moe to Morabbiin reminiscent of that old Johnny Cash Song – ‘I’ve been everywhere man’.

The challenge to have the Charter introduced into the Parliament was significant, but the Attorney’s speech reminds us that the biggest challenge is yet to come. In a sense, the challenge to take the message to the people will be the most important challenge for us all – to show what the relevance and importance of a Charter is for the every day person in their every day life in Victoria.

From Johnny Cash, we might flip to a bit of Jamaican reggae, and quote Bob Marley:

Get up, stand up
Stand up for your rights
Get up, stand up
Don’t give up the fight (1973 song)

All of us now have the challenge of making this Charter our new frontier, the instrument that it purports to be, and the Commission has a very clear and specific responsibility in this regard.

The Victorian Charter

The Charter of Human Rights and Responsibilities that has been adopted by the Victorian Parliament is a parliamentary rights model that aims to improve the work of Parliament and not to shift power to the courts.

You will hear repeatedly the basis on which the Charter has been developed, but let’s quickly remind ourselves.

The Charter posits that no rights are absolute and the purpose of the Charter is to improve democratic deliberation. This starts at the policy development level where all public authorities are bound to observe human rights principles. It allows for the possibility of reviews by invitation of the Attorney or the public authority, and for a newly constituted Victorian Equal Opportunity and Human Rights Commission to undertake such reviews by invitation. It calls for statements of compatibility or incompatibility when new laws are introduced, and gives enhanced powers to the role of the Scrutiny of Acts Committee assessing legislation against clear human rights principles. The courts can interpret and make declarations of inconsistent interpretations. The inclusion of responsibilities into the Charter is important in balancing individual rights against community concerns. The positive duty of compliance by public authorities will commence 1 January 2008. The Work of the Commission commences now.

The Victorian Equal Opportunity and Human Rights Commission will have a number of functions which include:

Annual reporting on the operation of the Charter;
The provision of human rights education
Undertaking ad hoc reviews on mattes related to the Charter at the request of either the Attorney-general or public authorities and
Intervention in court or tribunal proceedings that involve interpretation or application of the Charter. This power will not become operative until January 2008.

In relation to each of these dot points, they look completely manageable when you read them like this. But the Commission is very busy planning how we will actually achieve these functions, and importantly what sort of relationships we need to give effect to the responsibilities that have been assigned to us under the Charter.

Remember what the challenge is – to make this relevant as well as to make this work. As Noel Pearson said in delivering the Inaugural Mabo Oration in Queensland last year:

My primary concern with human rights are not so much their recognition but their enjoyment in reality rather than mere theory.

Let’s deal with them one by one. And in doing so please take this as an invitation to work with us to develop the processes that lay ahead. Because after all, it is in all of our interests to ensure that the Charter works for all Victorians, and actually makes a difference.

Annual reporting

The first report of the Commission is due to be tabled in Parliament September 2007. This report will precede the requirements for public authorities to demonstrate that their activities are consistent with the Charter, and before the requirement for statements of compatibility is enacted.

We know that the first annual report will be one of at least four, the fourth being the review of the Charter as required by the Act in section 44.

All of the attention on the Charter so far has been on the impact that the Charter may have in court proceedings, on the role of the Scrutiny of Acts Committee and so on. Yet this incredibly important feature of the Charter which is incorporated into the Commission’s functions has been given relatively less air play.

It is our view that this is a critical component of the accountability of Government and it is a critical aspect of the community having a transparent statement about how the Government has performed against the Charter of Human Rights and Responsibilities.

It is also a daunting task as the Commission will be required to report on:

The operation of the Charter, including its interaction with other statutory provisions and the common law;
All declarations of inconsistent interpretation made during the relevant year;
All override declarations made during the relevant year.

This will be a complex task for the Commission, and we will have to begin work now to frame up how we will collect data for the purposes of reporting. At this stage these are our preliminary thoughts:

Our first report next year will be something akin to a benchmark report and we are looking at models such as the ‘traffic light reporting’ – you know red lights means lots more work to be done, amber means going ok but don’t be too complacent and green light means well done.
The way that we are considering collecting the first set of data is through some sort of survey so we can say this is where the public authorities are now and we will look at what progress is made in the next financial year.
We need all forms of intelligence to feed into this process – and that includes the views of the Community sector about what the performance of government is. WE have had a preliminary discussion with some representatives from the Community sector (not just the community service sector) about how this might be done but we have a way to go.
We also need to set up a mechanism to collect data on how the declarations of inconsistent interpretations are being reported and again we may need a direct relationship with the courts and also assistance from our colleagues in places such as the Human Rights Legal Resource Centre.

To do this, we will have to meet with the heads of key agencies – Department of Justice, Department of Human Services, Department of Education and Training, and then roll out a process from there.

Watch this space for more information and our call to arms to get help with this significant task.

Human Rights Education

We are expected to provide education about human rights and this Charter. In this regard, I wish to acknowledge the significant job that the Consultative Committee did in raising awareness about human rights. Within extraordinary time pressures the Committee pursued a strategy that managed to educate the public as to the real state of human rights protection in Australia and Victoria, so they could in turn make an informed assessment of what they expected or wanted from government.

This was no mean feat given the confusion and misunderstanding created by our rich diet of US television dramas, and in addition to helping deliver the Charter, the work of the Committee should save a number of our courts from having to deal with unrepresented parties passionately claiming the protection of the 5th amendment, a story that is oft repeated by Professor George Williams the Chair of the Committee.

A critical first step is to distinguish between the need for information and education. We view the distinction in terms of information having the basic objective of people being made aware that the Charter exists, and in very simple terms what it is intended to achieve and what it means for Victoria.

Education is far more longitudinal, it builds on basic awareness to develop a more sophisticated understanding of the Charter and how it may be used by various groups and individuals to pursue their agenda, and/or develop their programs and operations. Education fosters an appreciation of the practical application and relevance of rights, and a capacity to look at an issue and identify and understand its human rights dimensions.

In relation to information strategies we are focusing our attention on a number of milestones, starting with our annual Human Rights Oration on December which will be delivered this year by Julian Burnside QC on the subject of the Charter. Held on December 6th, the oration acknowledges United Nations Human Rights Day (December 10).
In March 2007 we will stage a human rights conference which will be the official launch of the Commission as the Victorian Equal Opportunity and Human Rights Commission.
In May 2007 we will be involved in many of the Law Week activities auspice by Law Institute Victoria and Victoria Law Foundation.
Before during and after these milestones we will of course be engaged in the usual types of communications activities such as the production and dissemination of publications, speaking engagements and media relations

In relation to education strategies we will be:

Offering formal calendar training workshops to members of community sector organizations;
Piloting two regional workshops working closely with two local government areas with a view to making these a template to rollout across Victoria;
Offering train the trainer sessions for those organizations that wish to build human rights training into their day to day operations
Probably working on one population specific training program with Victoria's indigenous community;
Exploring what more we can do with schools and new arrivals, to areas of priority that have been identified icy the Attorney.

Our process will be defined by a number of features, viz:

Creativity in terms of raising awareness
Leverage – we need to make the most of every opportunity that is already organized – and that means conferences, events, special days, special weeks and we will try to proactively identify these and utilize those opportunities
Collaborations with many and any community sector organizations so that we can reach as many people as possible
Formal training opportunities

We will look to ways that we can work with all of you. For example, the work of the Homeless Persons Legal Clinic in facilitating a comprehensive submission by homeless people to the consultation process was incredible. There are very few if any other organizations that could have achieved this result.

Undertaking ad hoc reviews and Intervention in court or tribunal proceedings that involve interpretation or application of the Charter.

These powers will not become operative until January 2008. We have a bit of time to plan for this!!

What difference will the Charter make to a Fairer Future?

The criticisms that the Charter has attracted highlights a fascinating paradox. Many critics are the same people who rely on the UK as a touchstone for defining our historical perspective on the world, and the USA to help determine our contemporary position on many issues. Despite this, when it comes to protection of human rights critics abandon the approach of the UK and USA as akin to some form of madness. It is a curious point of departure.

The Charter will not vacate Port Philip and Barwon prison, and at the same time it will not immediately resolve and address every issue of social justice that we confront as a community.

The most fundamental contribution of the Charter will be to change the way in which issues are considered and resolved in that it will compel decision makers (be they law makers, bureaucrats, the courts) to consider the human rights dimension of all matters before them and act compatibly with human rights. But of course the rigour of this consideration and the benchmark of compliance can be undermined if there is a lack of political commitment, and community interest in these issues. The Charter gives us incredibly comprehensive tools to create a fairer, more equitable society; it is up to us how much we use them.

The Charter provides that public authorities should consider human rights in decision-making processes and also establishes that it is unlawful for public authorities to act inconsistently or incompatibly with human rights.

This aspect of the Charter is – at the very least – two dimensional. Firstly, as the question suggests, the duty of consistent action is a very powerful tool in promoting human rights compliance. In our submission to the consultation the Commission argued that one of the benefits of a human rights instrument is that it gives prominence to human rights considerations within a very crowded public policy process. This addresses the current risk or flaw in our system whereby human rights considerations can be trumped or overshadowed by other matters such as costs, narrow definitions of efficiency etc. These are important but should not render human rights invisible or second tier matters, or worse, matters only considered when they become a problem.

Over time however, a second dimension or more sophisticated understanding can hopefully emerge and human rights are understood as not being a separate set of considerations or an additional regulatory burden, but rather principles that enhance public administration. In NZ independent audits of the human rights framework have found it adds to the quality and sustainability of public policy, in the ACT Helen Watchirs argues they are beginning to provide an operational framework for what many have previously regarded as intuitive, but difficult to define. Compliance therefore becomes desirable rather than simply required because human rights are understood to be a fundamental part of, rather than an impost on, sound public administration.

The role of the courts is also important. Courts will not have the power to strike down legislation and nor will they have the power to order remedies for human rights violations per se. Instead, the Charter provides for the Courts to enter into a dialogue with Parliament, through the issuance of a ‘Declaration of Inconsistent Interpretation’, about the compatibility of a law, policy or practice with the Charter. Parliament will retain ultimate power to respond to such a Declaration as it sees fit. The Charter also requires that, so far as possible, courts interpret and apply legislation consistently with human rights.

People today are very much attuned to the notion that where the law says you have a right of some type, generally it will also say you can make a complaint or pursue an action where that right is infringed. The fact that the basic message about the Charter cannot be this clear-cut certainly makes the educative task more difficult because people wonder what the difference is that the Charter can make.

It is an issue, however it isn’t fatal for a number of reasons:

At the risk of sounding trite, an ounce of prevention is worth a pound of cure – the emphasis of the Charter through its compliance provisions vis-à-vis public authorities, and compliant interpretation provisions in relation to courts and tribunals is about preventing the infringement of rights and this should always be our focus. Legal processes can be compensatory, and they can aim for but are rarely fully restorative – it is always better that the wrong not have occurred.
Related to this it is also worth considering the critical analysis and assessment of anti-discrimination frameworks that is being made not just in Victoria and Australia, but in a number of overseas jurisdictions. Specifically, there is almost universal consensus that to achieve broad systemic change and improvement, something more than legal complaint mechanisms is required. Don’t get me wrong, I fully support the individual complaint mechanism in the Equal Opportunity Act, but we need to be realistic about what we can expect of it, and what we can expect of those who use it. Fundamentally it is there to try and resolve individual disputes, wherever possible we can try and leverage more out of it – but this is a bonus. We know that to address discrimination we need to focus on cause rather than consequence and effect – I believe this lesson has relevance to broader human rights.
In this context, the Charter’s dialogue emphasis on incremental learning and collaboration should not be dismissed as toothless, but rather seen as a compliance strategy founded on taking human rights out of a narrow litigious / confliction paradigm, and instead, placing them in a co-operative context. This may mean that where individuals experience a breach of human rights individual remedies are not entirely satisfactory – and this is certainly problematic – but it does not necessarily translate to a systemic compliance failure.
Finally, particularly in light of the changes to the Upper House system of voting it will arguably be a game government that can ignore a declaration by the Supreme Court, and bills containing override provisions will also need to be negotiated with other parties.

In conclusion

When we talk about human rights and the Charter, we recognize in this room that we have embarked on an historic phase of Victoria’s development as a civil, equitable and sophisticated democracy. The opponents will say that this should have happened federally. As Justice Michael Kirby pointed out in his opening of the Dreyfus exhibition at the Jewish Museum, “In many countries the awful happenings of the first half of the twentieth century, including the Dreyfus affair, led ultimately to the acceptance after 1945 of notions of legally enforceable fundamental human rights. In Australia we have accepted those notions as binding on the country, in the form of international treaty law. In some instances, we have also translated the notions into enforceable Australian law – such as the law on refugees, the law against racial discrimination, against sex discrimination and on other topics. But we have still not taken the final institutional step of embracing, nationally, an enforceable Australian charter of fundamental rights. Even Britain, Canada and New Zealand, in their difference ways, have done so, as has India, South Africa and, long since, the United States. Of course, such charters are no guarantee against wrongdoing, cover-up and official mistakes. But they are an institutional protection for what are partly institutional problems.”

However, it is clear that we are a long journey from achieving a national Charter of Human Rights. We are a long way away to from having our national leader declaring as John F Kennedy nomination acceptance speech in Los Angeles in 1960:

We stand today on the edge of a new frontier

That is true of us today however, and we have to make sure that the Charter is legacy stuff in the words of the Attorney, but that we make sure the legacy is one that leaves all Victorians with a Fairer future.